Pre-guidelines prior convictions are nonperson felonies

Ryan Eddinger and Patrick Dunn won in State v. Murdock, No. 104,533 (Kan. May 2, 2014), resulting in a new sentencing hearing in a Shawnee County robbery prosecution.  The KSC reversed Murdock's sentence and held that Murdock's pre-1993 out-of-state prior convictions should have been scored as nonperson crimes.  The KSC went on to state that all pre-guidelines prior convictions should be scored as nonperson crimes in scoring criminal history.  Thus, this opinion could end up having a big impact for a lot of defendants.

Generally, when determining whether out-of-state crimes are scored as person or nonperson offenses for assessing criminal history, the out-of-state offense is compared to an in-state offense.  In Murdock, the court applied the holding of State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010), which held that a comparable offense from another jurisdiction (when determining whether the comparable Kansas offense is person or nonperson) is compared to a Kansas offense in effect on the date the prior crime was committed.  Of course, prior to July 1, 1993, the state of Kansas did not designate crimes as either person or nonperson crimes.  Thus, Murdock held that, under Williams, any out-of-state felonies committed before July 1, 1993 would be scored as nonperson felonies because Kansas did not have person felonies at the time.

The KSC applied K.S.A. 21-4710(d)(8), (which is now K.S.A. 21-6810[d][6]), which states: "Unless otherwise provided by law, unclassified felonies and misdemeanors, shall be considered and scored as nonperson crimes for the purpose of determining criminal history."  Because convictions prior to July 1, 1993 were not classified as either person or nonperson, the court held that absent legislative direction to the contrary, all such convictions must be classified as nonperson for the purposes of determining criminal history.  The KSC reversed both the COA and district court and remanded the case back with instructions to classify Murdock’s pre-1993 out-of- state convictions as nonperson crimes.

A question that will surely come up is whether persons previously sentenced (even as far back as 1993) will be able to seek relief under Murdock.   In 2011, the KSC held that a sentence that is based on incorrect criminal history is illegal and therefore properly raised by motion to correct an illegal sentence even after completion of a direct appeal.  See State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011) (a sentence that is based on incorrect criminal history qualifies as an illegal sentence).  In combination, Murdock and Neal would seem to plainly answer the question.

[Update: on September 19, 2014, the KSC granted in part a motion for modification filed by the state.  The KSC changed the language in the decision to limit the express reach of the decision to out-of-state conviction.  This is probably consistent with the fact that an appellate court may choose not to reach issues that are not directly before it and the question regarding in-state convictions was not directly before it.  Logically, however, there is no difference between in-state and out-of-state convictions for these purposes.  In fact, the out-of-state classification depends on a determination of what an in-state conviction would be.  So, if pre-1993 in-state convictions can be classified as person offenses, it is difficult to reconcile Murdock.  There are cases in the pipeline that will hopefully decide this question sometime in the not-too-distant future.]

[Further update: on August 28, 2015 (less than a year after the KSC's last order in Murdock), in State v. Keel. No. 106,096 the KSC overruled Williams and, consequently, overruled Murdock itself.]